In what may be ultimately be seen as the first big blow against Cancel Culture madness, California’s Third District Court of Appeals ruled unanimously the state’s 2017 mandate that long-term care employees use a resident’s preferred pronoun is unconstitutional.
The three judges in part reversed a lower California court that had upheld the mandate. In the Taking Offense v. State of California opinion, written by Judge Elena J. Duarte, held that:
“We conclude the pronoun provision–whether enforced through criminal or civil penalties — is over-inclusive in that it restricts more speech than is necessary to achieve the government’s compelling interest in eliminating discrimination, including harassment, on the basis of sex.
“Rather than prohibiting conduct and speech amounting to actionable harassment or discrimination as those terms are legally defined, the law criminalizes even occasional, isolated, off-hand instances of willful misgendering — provided there has been at least one prior instance — without requiring that such occasional instances of misgendering amount to harassing or discriminatory conduct.”
The challenge to the law was filed by Taking Offense, an unincorporated California association that argued the mandate is a content and viewpoint requirement that cannot survive the U.S. Supreme Court’s strict scrutiny standard.
Strict scrutiny essentially means speech cannot be compelled unless it is justified by the state as narrowly tailored to minimize the restriction and is the only means to achieve something in which there is a compelling public interest.
Liberty Counsel, the Florida-based public interest law firm that specializes in First Amendment/religious freedom litigation, was quite interested in the Taking Offense decision. Mat Staver, Liberty Counsel’s founder and chairman, praised it in a statement:
“No person should ever be forced to speak a message prescribed by the government, especially when the purpose is to support an ideology that conflicts with reality. The First Amendment guarantees the right to speak and the right not to speak.”
The law in question added the “Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights” to the state’s Health and Safety Code and associated regulations.
The law barred “staff members of long-term care facilities” from “willfully and repeatedly referring to a facility resident by other than the resident’s preferred name or pronoun when clearly informed of the name and pronoun.”
There are, at last count, at least 78 gender pronouns. The number of entries on the list varies from time to time.
The decision was not a complete victory, however, as Taking Offense failed in its charge that the mandate awards a privilege to transgendered individuals — choosing with whom one has “intimate association” via sharing living quarters — that is not available to non-transgendered individuals, which if true would be a deprivation of equal protection.
“In addition to its equal protection argument, Taking Offense also asserts that the room assignment provision violates non-transgender residents’ freedom of intimate association by not extending to those residents the right to choose extended to transgender residents. However, as we have discussed, the room assignment provision does not recognize any right to intimate association for transgender residents not provided to non-transgender residents.
“Additionally, to the extent Taking Offense contends that non-transgender residents of long-term care facilities have a right to intimate association, its challenge to the room assignment provision is misplaced because that provision does not facially restrict any long-term care facility resident’s right of intimate association. Accordingly, Taking Offense’s argument lacks merit.”
Last year, the U.S. Fifth Circuit Court of Appeals turned down a federal prisoner’s claim that Bureau of Prisons officials must begin referring to him by his preferred feminine pronouns, claiming that approving his demand would “raise delicate questions about judicial impartiality.”
The appeals court judges added that “We decline to enlist the federal judiciary in this quixotic undertaking.”
Staver said at the time that, “the Fifth Circuit made a wise decision not to open pandora’s box of pronouns. Once that door is opened, there is no limit. This would open the floodgates to a mutiny of legal cases addressing the galaxy of delusions in today’s society.”
Well said, Mr. Staver!